Civil Cases Land Cases

SUIT NO: HOW/524/2017- 1. ENGR. ELEAZER ONYECHERE 2. BRIGHT INDIA ONYECHERE 3. EMMANUEL ONYECHERE 4. BERTHRAM ONYECHERE 5. HERBERT ONYECHERE (For themselves and as representing the Onyechere Family of Umuokem, Obokwu Obinze, Owerri West L.G.A), save and except the Defendant.) VS. MICHAEL U.A ONYECHERE- BEFORE HIS LORDSHIP: – HON. JUSTICE INNOCENT. M. NJAKA delivered ON THE 5TH DAY OF OCTOBER 2021- Partition of Land- Prerogative of the Head of the Family- Consent of Principal Members- Validity of Committee’s Role- Validity of Committee Actions- Customary Practice- customary law cannot contradict the provisions of the Nigerian Constitution, particularly those prohibiting discrimination

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IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDING AT OWERRI

ON THE 5TH DAY OF OCTOBER 2021

BEFORE HIS LORDSHIP: – HON. JUSTICE INNOCENT. M. NJAKA

SUIT NO: HOW/524/2017

BETWEEN:

  1. ENGR. ELEAZER ONYECHERE
  2. BRIGHT INDIA ONYECHERE
  3. EMMANUEL ONYECHERE ===========PLAINTIFFS
  4. BERTHRAM ONYECHERE
  5. HERBERT ONYECHERE

(For themselves and as representing the

Onyechere Family of Umuokem,

Obokwu Obinze, Owerri West L.G.A),

save and except the Defendant.)

AND

MICHAEL U.A ONYECHERE===========      DEFENDANT

JUDGMENT

The Plaintiffs by Writ of Claim filed on 11th July 2017 Claimed as follows:

  1. A DECLARATION of the Honorable Court that under the age long custom, usages and practice of Onyechere family, the 1st Plaintiff is the subsisting Family Head of the Onyechere family of Umuokem, Obokwu Obinze in the Owerri West Local Government Area of Imo State and remains so until his death.
  2. A DECLARATION that under the age long custom, usages and practice of Onyechere family of Umuokem, Obokwu Obinze in the Owerri West Local Government Area of Imo State, the Defendant cannot challenge the 1st Plaintiff’s due and lawful exercise of his power as family head, or prevent the 1st Plaintiff from lawfully exercising his authority or performing his duty as family head.
  3. AN ORDER of the Honorable Court upholding the sharing of ‘’EGBELU’’ land by the 1st Plaintiff as family head of Onyechere family

The Defendant’s leave to file Statement of Defence out of time was granted on 19th January 2018 and his defence on the 20th day of October, 2017 was deemed properly filed and served. He denied the claims of the Plaintiffs.

The Plaintiffs filed a REPLY to the Statement of Defence on 18th of January 2018.

The Defendant filed a motion asking the court to dismiss this action for being an abuse of court process.  The Defendant submitted that on the 17-5-2018, the court ruled/ordered that the ruling on the Application/motion shall be considered alongside the judgment of the court in the suit. In the course of hearing no evidence was led to show that this action is an abuse of court process. The jurisdiction of the High Court over land in rural areas or with Customary Right of Occupancy is not in doubt. In ADISA V. OYINWOLA AND 4 OTHERS (SC 304/1991) [2000] 7 (23 JUNE 2000); (2000) All N.L.R. 453 it is stated:

“Section 41 of the Act does not circumscribe the unlimited jurisdiction of the State High Courts in land matters whether situate in urban or rural areas. The Land Use Act does not oust the jurisdiction of the State High Courts in respect of disputes over land subject to a customary right of occupancy. The High Courts have concurrent original jurisdiction (with area or customary courts) in respect of claims pertaining to land subject to customary right of occupancy granted by a Local Government under the Act.

As I said earlier no evidence was led or document tendered, suggesting that this issue has been abandoned. In CHIAGHANA & ANOR v. GOVT OF ANAMBRA STATE & ORS (2016) LPELR-42096(CA) it is stated:

“It is clear from the above pronouncement of the Court below that the basis of its finding that the subject matter and the relief sought in the present suit and suit no. AA/72/86 are the same is the evidence led by the appellants in respect of that suit which evidence is viva voce. It is obvious from the pronouncement of the Supreme Court in ABUBAKAR vs. BEBEJI OIL AND ALLIED PRODUCTS LTD. & ORS, (supra) that in order to determine whether a suit constitutes an abuse of Court process, the Court before who the issue is raised must consider and compare the content of the present process with the content of the process in the previous suit to see whether the subject matter, the parties and the issues are the same or that the two suits are aimed at achieving the same purpose. That in my view is the only means by which the Court can conclusively reach a decision on whether or not the subject matter, the parties and the relief(s) sought in the two suits are the same. The nature of a case can only be disclosed by the process filed before the Court and not by viva voce evidence of a party. See AGWASIM VS. OJICHIE (2004) LPELR – 256 (SC), (2004) 4 S.C (pt.11) 160, HANAFI MOHAMMED vs. R. N. & ORS (2009) LPELR -8364 (CA), KADIRI & ANOR. VS. EWUOSO (2014) LPELR – 22953 (CA). In the instant appeal, no single process in suit no. AA/72/86 was before the court below. By virtue of Section 25 of the Evidence Act, 2011, “Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under Part V or unless the genuineness of a document is in question.”

If I am to look at the motion filed, the affidavit and counter affidavit and written submissions of the counsel, I will say that the present suit is more encompassing. A defendant has the choice of instituting a fresh action or filing a counter claim to an existing action. A party can adopt one or the other option and it does not lie in the mouth of the opponent to complain about the choice made by the party. See R-BENKAY NIGERIA LIMITED. V. CADBURY NIGERIA LIMITED (2012) LPELR-7820(SC).

If there is a court with jurisdiction to determine all the issues raised in a matter including the principal issue, it is improper to approach a court that is competent to determine only some of the issues. See ALHAJI UMARU ABBA TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) A.N.L.R 575; THE REGISTERED TRUSTEES, LIVING CHRIST MISSION & ORS. V. DR. OSITA ADUBA & ANOR.  (2000) LPELR-3197(SC), (2000) 3 NWLR (Pt.647) 14, (2000) 2 S.C 1

In my view, thus suit is not an abuse of court process.

The plaintiffs to prove their claim called two witnesses while the Defendant testified as sole defence witness and tendered exhibit A.

At the close of evidence the counsel filed written submissions. The Defence counsel formulated issue for determination as follows:

  • Whether or not the Egbelu land the subject matter of this case was shared/partitioned by the Onyechere family.
  • Whether a family land can be shared/partitioned without the consent of a principal member of the family

On the other hands, the Plaintiffs’ counsel formulated issues for determination as follows:

  1. Whether ‘’Egbelu’ land was Shared/partitioned in accordance with the custom, practice or usage of Onyechere family?
  2. Whether having regard to the pleadings and evidence, the defendant can challenge or reverse the sharing of ‘’Egbelu’’ land under the headship of the 1st plaintiff?
  3. Whether exhibit ‘’a’’ the purported terms of reference/ or memorandum of understanding has any evidential value, vis-à-vis the sharing of ‘’Egbelu’’ land?
  4. Whether the exclusion of the descendants of Ezewuike by the defendant from sharing of Onyechere family lands on the grounds that Ezewuike was a stranger/slave of the Onyechere family is tenable?

The issue here is within a very narrow compass. Was the Egbelu land partitioned? The Defendant is saying it is not partitioned because it ought to be partitioned among the 5 recognized branches of Eleazar Onyechere excluding EZEIKWU and it is not the prerogative of the head of the family to partition land but that of a committee. The plaintiff is saying it has been partitioned among the male members of Onyechere family. The defendant at a point stated that in the partitioning of the land the older generation take two plots while the new generation takes one. From his evidence it will appear that the Defendant and the 1st Plaintiff are the older generations. But this will not align well with the assertion that he has maintained that it should be among the 5 children of Onyechere. Because every branch of Onyechere will have equal share of every undivided or un-partitioned portion of Onyechere whenever there is a decision to divide or partition them.

On the prerogative of the head of the family to partition land, I am of the view that while the head of a family is alive and healthy; not in any way incapacitated; he can choose who to act on his behalf.  The De jury and De facto head of the family is strange to native law and custom of Igbo land. I think what is applicable in the management of family property or land is general in Igbo native law and custom. It is always the head of the family with the help or cooperation of the principal members, where applicable, that manages the family’s property. In MR. AGBAI OJEBE NDUKWE v. ADMINISTRATOR-GENERAL OF ABIA STATE (2019) LPELR-46618(CA) it is stated:

“Indeed, dealings with the family land must be carried out with caution. In the case of SOWUNMI VS. AYINDE (2011) 1 NWLR (PT. 1227) 122 at 127 Ratios 5 and 6 it has been held:- “The sale of family property without the consent of some of the principal members of the family is voidable while any sale or dealing with the land carried out by principal members of the family without the consent of the head of the family is null and void…” and again “sale of family land by a member of the family without the consent of the head or principal members of the family is void ab initio. The head of family must, under customary law join in conveyance, lease, or disposition of family land and the principal members must consent thereto otherwise such a disposition is void ab initio.” It may be argued that the authority above cited deals with disposition of family land and not surrender to the Administrator-General, however, the principle of law in my opinion, will equally apply where any dealing with family land is carried out without the consent of the head and principal members of the family. The learned trial Judge did not demonstrate with any authority where a member of a family not being the head or principal member of the family can surrender an estate in land to the Administrator-General or any other body without the consent of the head or any other principal member of the family.” Per IBRAHIM ALI ANDENYANGTSO ,JCA (Pp. 48-49, para. C-C)

Again the most important requirement in determining the validity of any dealing with the family property whether it is total alienation, allocation, allotment or partition, is the consent of the head of the family and a majority and not necessarily all the principal members of the family. In VICTOR OSITA OKONKWO v. GEORGE N. C. OKONKWO & ORS (1998) LPELR-2487(SC) it is stated:

“… Even if plaintiff were in Nigeria, it has to be understood that it is not the requirement of law that for a valid sale of family property, there has to be a unanimity of concurrence of the members of the family. To insist on that is to set up a dictatorship of the minority. It would seem that if the head of family secures the concurrence of the majority of the principal members of the family, he can validly alienate the family property. In Adewuyin & ors v. Mosadogun lshola & ors (1958) WNLR 110 at 113 Ademola C.J. said: ‘Now the case Bello Adedubu and another v. Makanjuola 10 WACA 33 laid down the principle that the head of the family in Ibadan cannot dispose of family property without the consent of the family. This, in my view, must not be taken to mean that every member of the family has to give his consent. It is, in my view, enough if a majority of the members gave their consent.” Per UTHMAN MOHAMMED ,JSC (P. 13, paras. A-D)

The court went further to state:

“But the law is not that the sale of family land by the head and some principal members of the family without the consent of a principal member of such family is void. On the contrary, the law is that a sale of family land which the head of the family carries out as such head of family, whether with or without some principal members of the family is only voidable but not void at the instance of the non-consenting principal members of the family provided such non-consenting members acted timeously and are not caught by laches. This is as against a sale made by principal members of a family without the concurrence of the head of the family. This, in accordance with customary law, is void ab initio. See Ekpendu and Others v. Erika (1959) 4 F.S.C.79 at 81; (1959) SCNLR 186 at 188; Kwesi Manko and Others v. Bonso and Others (1936) 3 WACA 62 at 63 etc.” Per ANTHONY IKECHUKWU IGUH ,JSC (Pp. 30-31, paras. E-A)

The defendant pleaded and testified thus:

“12. The Defendant denies paragraphs 10. 11, and 12 of the statement of claim and states that the Onyechere family had always shared/partition family land amongst the five family brances of Onyechere family tree and each family branch in turn shares/partitions what it got amongst its male members.

  1. The Defendant admits paragraphs 13, 14, and 15 to the extent that the Onyechere family land is first shared amongst the five branches of Onyechere family tree and thereafter each family branch shall share what it got amongst the male members of the respective family branches.

14a. The Defendant states that the Elder Onyechere the progeny of Onyechere family of Obinze in Owerri West LGA had two wives namely, Madam Ukwuoma Aguobi Onyechere and Madam Uluopara Onyechere each of who had sons and daughter for late Elder Onyechere.

14b. The Defendant states that the 1st wife of Elder Onyechere, Madam Ukwuoma Aguobi Onyechere begot two sons namely; (1) Okereafor Onyechere and (2) Onyemaobi Onyechere. The 2nd wife of Elder Onyechere, Madam Uluopara Onyechere begot three sons name: (1) James Onyechere (2) Timothy Onyechere and (3) Olumba Onyechere.

  1. The Defendant states that each of the five branches of the ssaid Onyechere family represents one the direct sons of the five direct sons of late Elder Onyechere”

By this evidence of the Defendant, though Pa Onyechere was polygamous, he married two wives according to the Defendant, the Onyechere family land was not shared into two branches but to the five sons of Pa Onyechere. This does not support the presentation or insistence by the Defendant that branches has been the basis for land sharing by Onyechere. The act of sharing the land equally among the male children to my mind, ab initio, obliterated the idea of branches.

The Defendant further pleaded and tendered exhibit A titled Terms of Reference and dated 3-11-2007. It stated:

“As a follow-up of our decisions last year to share among us, 1st half of our land- property at Mgbabo Ochashi – (Uzor Umuorcha)”.

This introduction has automatically taken this document exhibit “A”out of consideration not relating or referring to the land in dispute the particulars of which is provided in paragraphs 5, 6 of the Statement of Claim and testified to by the Plaintiffs. Exhibit A specifically mentioned property at Mgbabo Ochashi.

If I am permitted to go any further into this exhibit “A”, I will also observe that the exhibit A went further to state:

“The land belongs to our Grandfather Nze Onyechere Okoroukwu of Umuokuzu Obokwu”

“That the property mentioned above is part of our inheritance from our 5 fathers (Ref No.3)”

“That all 5 sons of Nze Onyechere Okoroukwu are equal in all aspects therefore, the 5 heads of the sons of (1) Okoroafor, (2) james, (3) Onyemaobi, (4) Timothy and (5) Micah”

The property in question could not have been their inheritance from their 5 fathers. Until the land is shared or partitioned it belongs to the Pa Onyechere.

The partitioning of family land is a general custom and there may be modifications by an individual family but once there is a contest, it is the general principle of the custom that will be applied. And whatever a modification the family will want to introduce to the custom once it is aimed at emasculating the interest and right of any member of that family, such introduction must be struck down.  In fact a partition that does not take into consideration all the interests represented is considered invalid.

The Defendant stated under cross examination that it is not the head of the family that shares allocate and supervise the sharing of the family land together with principal members of the family

The 1st Plaintiff returned for the burial of their brother late Ike Ben Onyechere. He was at home and wanted to take over the work of the committee and to singlehandedly handle the sharing of the land but we disagreed with him. He stated that he is not the head but the sharing of land is not an exclusive responsibility of the head.

According to the Defendant it is the committee whose responsibility it is to partition the Onyechere land. He said he is the chairman of the committee. It is not the family heads that share the land. It is the committee. The makeup of my committee is myself and Bright India Onyerchere. He is the committee sectary and I myself aim the chairman. It was Umu Onyechere who constituted the committee and appointed me chairman. That time Nathaniel Onyechere was alive, Njokuji Onyechere, Robinson Onyechere were all alive. Eleazar has always been away. There is a committee and the chairman. There is document to show that. Our memorandum show that Onyechere has 5 children and Ezewuike is not in our bloodline. He is a stranger

It is observed that the Bright India Onyechere who the Defendant recognized as the secretary of the Committee is the 2nd Plaintiff in this suit. The 2nd Plaintiff who testified as PW1, under cross examination stated:

“The custom of Onyekwere family provides for a body called Onyekwere family meeting. I am the secretary of the family meeting. The defendant is the chairman to the family but a self-made chairman. The affairs of the family are not managed, executed and controlled by the body called family meeting. The defendant is the 2nd oldest man of the family of Onyekwere. I sued the defendant because he did not accept the sharing of family land by me and my group.

There is no evidence of the members of this committee. Committee is described the dictionary.thelaw.com: thus:

“In practice. An assembly or board of persons to whom the consideration or management of any matter is committed or referred by some court. Lloyd v. Hart, 2 Pa. 473, 45 Am. Dec. 612; Farrar v. Eastman, 5 Me. 345. An Individual or body to whom others have delegated or committed a particular duty, or who have taken on themselves to perform it in the expectation of their act being confirmed by the body they profess to represent or act for. 15 Mees. & W. 529. The term is especially applied to the person or persons who are invested, by order of the proper court, with the guardianship of the person and estate of one who has been adjudged a lunatic”.

When it comes to partitioning, sale or allotment of a family land, it is strange to talk about committee or family meeting’ s chairman and secretary. The parties have not proved that in Igbo Tradition and customary law, the head of the family can be replaced with committee or family meeting’s chairman and secretary. This much is stated in the case of DINUOLA AKINBILEJE & ORS v. CHIEF SERIKI OGUNTOBADE & ORS (2013) LPELR-21965(CA) thus:

“It is pertinent to point out that the appellation “Chairman and or Secretary of the family” is novel for purposes of the sales and or disposition of a family land or property. The key players in the event of any such sale or disposition are the head of family and majority of the principal members of the concerned family. Chief Lijoka Akinde the recognized family head as well as the PW1 and PW2 being principal members of the family were neither present nor did they otherwise consent to the disposal of the five cocoa farmlands as contained in Exhibit B (Sale Agreement). Undoubtedly, the 1st respondent (Chief Seriki Oguntobade) by signing the said Exhibit B as Chairman of the family and in the absence of the acknowledged family head (Chief Lijoka Akinde) was acting ultra vires his power and in usurpation of the powers of the family head of the Adebosotu family. The sale/transfer as evidenced in Exhibit B is therefore null, void and of no legal effect.

This custom or tradition of partitioning of family property/land is of universal application in Igbo land including Owerri West. The parties in this suit are ad dem on the existence of this custom/tradition. There could be no peculiar native law and custom applicable only to a particular family different from the native law and custom applicable and enforceable within the community or society in which the family is situate. A family may chose per kitchen or branch while some may chose per male member of the family. By recent developments in law on inheritance this will include male and female.

The Defendant under cross examination stated that why he disagreed with the partitioning is because he (the 1st Plaintiff) changed the MOU signed that Onyechere has 5 children and brought in 6th one. On further cross examination he cannot remember that Ngugere land one of the Onyechere land was shared in 2009, he cannot remember Mgbabo ochasi was shared in 2009( Mgabo Ochasi was specifically referred to in exhibit A tendered by the Defendant) But they have all been shared. He cannot also remember the date Mgbaracha and Eze Uzomumucha was shared in 2011.

One would have expected him to have this information at the tip of his fingers or be bold to categorically counter them. He did none of that.

Again, he stated that in all the sharing of the lands Onyecherre never mentioned Memorandum of Understanding but with reason. It is not commendable that Defendant who claimed that he is secretary of the family meeting cannot give categorical answers to specific questions as to when some lands were shared. He did not give any specific answer as to why this MOU was not an issue over lands earlier partitioned.

Also under the same cross examination:

“I do not know that from the sharing of Egbule land as supervised by Eleazer my son was given plot 8 and he is in possession. If my son has a plot there. I do not know.

I do not know that my younger brother Israel was given plot 11 and he has sold same to my knowledge. Who could do that without my knowledge? I am not aware that all other Onyechere sons are in occupation of the plots of land including me and I have been farming on the lands shared by 1st Plaintiff

The Plaintiffs claimed that the land has been partitioned. Partition of family land means a permanent division of the land for purposes not only of use but ownership. See ALAFIA VS. GBEDE VENTURES (NIG.) LTD (2016) 7 N.W.L.R. (PT. 1510) PG. 116 AT 147 PARAS B – C. In UGWU & ORS v. EZEANOWAI & ORS (2017) LPELR-41888(CA) it is stated:

“… the law is well settled that to avoid disputes within the family after the demise of the owner of the property, it is an acceptable incident or feature of native law and custom to partition the property among the legitimate beneficiaries and this can be done orally or in writing. See Taiwo vs. Taiwo (1958) 3 FSC 80 at page 82 and Idewu vs. Hausa 13 N.L.R. 96 at page 97.Per TUR, J.C.A. (P. 36, Paras. B-D)

Agree that the head of the family is in charge of partitioning of family land, the head of the family cannot on his own, partition family property without the consent of joint owners of the property joining in the voluntary partitioning of the property. See OLORUNFEMI V ASHO (2000) 2 NWLR (PT 643) PG 143 AT 156 PARAS, H – A. It would seem that if the head of family secures the concurrence of the majority of the principal members of the family, he can validly partition the family property. See VICTOR OSITA OKONKWO v. GEORGE N. C. OKONKWO & ORS (1998) LPELR-2487(SC).

Although partition could be by deed, in customary law, oral partition is valid. See TAIWO V. TAIWO 1 NSCC 46, 50; (1958) SCNLR 244.Any partitioning that does not accommodate all the members of the family cannot be valid. The Defendant seeks to exclude the descendants of Ezewuike. The Defendant pleaded as follows:

“8. The Defendant admits paragraphs 5, 6, 7 and 8 of the statement of claim to the extent that EZEWUIKE is not one of the sons of Nnayi Onyechere

  1. The Defendant states that Ezewuike was a stranger/slave of Onyechere family and does not descend from Nnanyi Onyechere

In this regard under cross examination the Defendant stated:

“Our memorandum show that Onyechere has 5 children and Ezewuike is not in our bloodline. He is a stranger. When Onyechere was alive Ezewuike never entered our compound.  He was brought by Adoku Okorukwu, who is Onyechere’s elder sister to work for him. Ezewuike is almost of the age with Onyechere. He is from Oforula. His father’s name is Ukpabia. It is not Owere name. My father told me all these. He was the oldest. It is about that. It is not true that Ezewuike and his descendants had remained in Onyechere family for a hundred year ago.”

The purpose of this evidence is to exclude Ezewuike and his descendants from the properties of Onyechere. The attention of the Defendant was drawn to the fact that other lands were partitioned without the mention of exhibit A which he referred to as MOU and he replied that it was not mentioned for a reason. Throughout the evidence of the Defendant he never gave reason the exhibit was not mentioned during the partitioning of other lands. I have earlier stated that the exhibit was specific on the property it referred to. It did not mention Egbelu land the subject matter under consideration.

The Plaintiffs in support of their claim that the land has been partitioned stated:

“After parcellation and delineation of Egbelu land by the surveyor, a date was fixed for the sharing by the members of Onyechere family. on that day, the family members proceeded to EGBELU land, where the 1st Plaintiff, as the eldest and the family head, first performed the customary rites which always preceded sharing/partitioning of family lands, by breaking kolanuts, pouring libation, ad further observed the conventional ïgbu mma n’ohia, by ceremoniously cutting some bush, thus signifying that the sharing should begin.

EGBELU land, was accordingly shared. Family members took their shares in accordance with the family practice of one man one plot. the Defendant was given his own share. His sons and grandsons received their shares.

Some family members, following the sharing, have exercised various acts of ownership and possession over their own shares. Some have sold their own lands, while some have commenced erection of building, thereon.

Upon conclusion of the sharing of Egbelu land, the Defendant got Plot 6 Egbelu land, while his son, Jubilate Onyechere got Plot 8 of Egbelu land. His other son, Onokpe Kemachi Onyechere got Plot 12 of Egbelu land.

The Defendant contested the power of the head of the family to partition the family land as well the inclusion of EZEWUIKE lineage in the partitioning. He stated to the effect that:

I Michael Onyechere has been the one administering everything at home ranging from allocation of farm land, and other function of the head of the compound. It is not the head of the family that shares allocate and supervise the sharing of the family land together with principal members of the family. He returned for the burial of our brother late Ike Ben Onyechere. He was at home and wanted to take over the work of the committee and to singlehandedly handle the sharing of the land but we disagreed with him. Should Engr. Onyechere Eleazar die I am the one to take over from him. I am not the head but the sharing of land is not an exclusive responsibility of the head. I am not in a hurry to take over from the Engr Eleazar. But a part of Egbelu land has been shared while he was in USA. I do not wish him death so that I can take over. The usual practice in Onyechere family is not to share one man one plot. It is not. The older generation take two plots while younger generation taken one. It is not true that my grouse with Engr Onyechere is because he insisted on one man one plot. He wanted to be involved in the parcellation but we said no it is not his work. When the elders in the family pass on, the younger one will succeed them. The 2nd – 5th Plaintiffs are the 3rd Generation and I and the 1st Plaintiff are in the 2nd Generation. The 2nd – 5th Plaintiffs are elders in their women kitchen. It is not the family heads that share the land. It is the committee. The makeup of my committee is myself and Bright India Onyechere. He is the committee secretary and I myself I am the chairman. It was Umu Onyechere who constituted the committee and appointed me chairman. That time Nathaniel Onyechere was alive, Njokuji Onyechere, Robinson Onyechere were all alive. Eleazar has always been away. There is a committee and the chairman. There is document to show that.

The defendant did not say why he did not contest the partitioning done in 2009 and 2011 and other lands. And he has not said that the Ezewuike did not participate in those partitions, there is a presumption that they have been part of the sharing or partitioning of Onyechere lands. In ALH. (CHIEF) SULAIMAN EBUOSO JINMI & ORS v. MR. KOLAWOLE ODUSOGA GBEPA & ORS (2017) LPELR-43501(CA) it is stated:

. So if partition is usually sharing of family land, done within a family and the Appellants benefitted from Mopori land when it was partitioned in 1992, the burden would be on the person challenging their membership to so prove. Unless that can be explained, the reasonable conclusion is that they are members of Mopori family, see OPEOLA V. FALADE (1991) 2 NWLR (PT. 173) 303. There was evidence of recent acts on the said land and particularly the house which the Appellants still occupy. The Respondents are duty bound to explain how they lost possession of the house to the Appellants for so many years”.

The plaintiff testified that:

“The allegation of the Defendant regarding Ezewuike are fabrication in other to deny or exclude the Ezewuike unit/branch of the Onyechere family, particularly the 5th Plaintiff, from getting a share of the estate. Our forebear, Nnanyi Onyechere had concubines in addition to his wives. Ezewuike’s mother was one of his concubines. She lived and died within Nnanyi Onyechere compound, unlike other concubines. He acknowledged all his children by his concubines including Ezewuike. He also accorded Ezeuike every rights as his son, including naming him and giving him shares of his estate. Ezewuike bore the name Onyechere as his surename during and after the lifetime of Nnayi Onyechere. Ezewuike was once the head of family when he became the eldest man in the family.

The defendant has not successfully challenged the position of the 1st Plaintiff as the family head. As the family head the 1st Plaintiff is legally empowered to deal with the family land in conjunction with the principal members of which the Defendant is one of them. His dealing with the family land includes the supervision of its partitioning among the family member. He does not of a necessity need the unalloyed and undivided support or agreement of all the principal members of the family. In this case the 1st Plaintiff appears to have the support of the majority of the principal members of Onyechere family. This action in the first place is brought in representative capacity. The Defendant did not challenge the bringing of this suit in the name of Onyechere family.

The defendant has not succeeded in excluding the Ezewuike of which the 5th Plaintiff is said to represent from the lineage of Onyechere. Ezewuike is a member of Onyechere family. It is wrong and should not be encourage that a person should wake up any day to call another man a slave who is not entitled to any share from a man who evidence has shown treated him as son. Where a subject matter is governed exclusively by a law or statute for the time being in force, any customary law that is inconsistent with such a law or statute cannot be valid. The Constitution of the Federal Republic of Nigeria has made compelling and adequate provisions in this respect. I think the authority of ADEJUGBE VS. OLOGUNJA (2004) ALL FWLR (PT. 201) 1652, at 1657, particularly at 1670 C – E, per Pats Acholonu JSC cited by the counsel to the Plaintiffs is apt here. It stated:-

The sole reason advanced by the Respondent in the candidature of the 2nd appellant is that he was a descendant of a slave. No sane person in our society having regards to the provision against discrimination made patently clear in the 1979 and 1999 Constitutions would support the nihilistic and obtuse stand of the Respondent that the Appellant was ineligible to contest because of the stigma attached to his name. Such insipid and cruel utterance is negativistic and abhorrent in a modern society. This court should strike down any attempt by anybody or institution to deny anyone of his rights, interest, privileges or benefits on consign a fellow citizen to a second class position or make him a non person’’

The property may be, but is not invariably, divided among individual members of the family so as to vest absolute ownership in individual members. The division may be among constituent branches of the family. See PA TAYO OJO v. CHIEF JEROME AKINSANOYE (2014) LPELR-22736(CA).

In this case I am convinced that it has always been among individual members – that is every male and not constituent branches. The Plaintiffs have proved their case by preponderance of evidence.  What amounts to a valid partition of land is a matter of fact. I am convinced by the evidence adduced by the Plaintiffs that Egbelu land has been partitioned. See OLA YESUFU v. ROBINSON OLUSEYI ADAMA (2002) LPELR-12162(CA)

In view of my findings as above, it is:

  1. Declared that under the age long custom, usages and practice of Onyechere family, the 1st Plaintiff is the subsisting Family Head of the Onyechere family of Umuokem, Obokwu Obinze in the Owerri West Local Government Area of Imo State and remains so until his death.
  2. Declared that under the age long custom, usages and practice of Onyechere family of Umuokem, Obokwu Obinze in the Owerri West Local Government Area of Imo State, the Defendant cannot challenge the 1st Plaintiff’s due and lawful exercise of his power as family head, or prevent the 1st Plaintiff from lawfully exercising his authority or performing his duty as family head.
  3. AN ORDER of the Honorable Court upholding the sharing of ‘’EGBELU’’ land by the 1st Plaintiff as family head of Onyechere family

I so hold.

I.M.Njaka

Judge

5-10-2021

 

Previous post APPEAL NO: HOW/3A/2020 – ECOBANK NIGERIA PLC VS IMO STATE BOARD OF INTERNAL REVENUE- BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA – delivered ON THE 8TH DAY OF DECEMBER 2021- Imo State Revenue Court had unlimited monetary and fiscal jurisdiction for matters related to revenue collection and administration – Section 4 (2) of the Imo State Revenue Court and Task Force on Revenue Collection Establishment Law No 16, 2012 – the Imo State Revenue Court Law No 16 of 2012 did not specify a particular magisterial grade but only stated “a Magistrate”- a specific law on an issue overrides a general law on the same issue- Section 55(1) of the Personal Income Tax Amendment Act, 2011 (PITA)- Section 55 of PITA dealt with assessing a taxable person for the correct amount of tax due and did not establish a time limit for instituting actions in court- fraud is a criminal offense and cannot be statute-barred. Therefore, the limitation of six years would not apply in cases of fraud, willful default, or neglect- Tax authorities often have the right to request documents and information from taxpayers for the purpose of assessment- the appropriate time to dispute the tax assessment and provide evidence is during the investigation or assessment process by the tax authority
Next post SUIT NO.: – HOW/295/2017 – CHIEF GODDY OJINNAKA VS CHRISTIAN EKE (For Himself and as Representing the Other members of Late Sunday Eke Family of Umuanu Umuonyeche, Owerri, Imo State)- BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- delivered ON THE 21ST DAY OF DECEMBER, 2021- Commendation of Counsel- Onus of Proof in Land Title Cases- Requirement for Sale of Family Land- Customary Sale Requirements- Proof of Ownership of Title- Multiple Means of Proving Ownership- Onus in Land Title Disputes – Witness Testimony and Corroboration – Family Land vs. Individual Land- Sale of Family Land- Proof of Illiteracy- Presumption for Documents Over 20 Years Old- Burden of Proof in Allegations of Forgery- Evidence of Land Use – Lack of Evidence for Customary Practices- Incomplete Ownership Activities- Documentary Evidence- Lack of Substantiated Claims- Dispute Survey Plan- Post-Suit Documents
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